e-Discovery Education and Certification

In the past few weeks I have been asked many times about certification and e-discovery. I know that there are groups out there who offer certification of competence in the field. Indeed, for some that is their main focus. As this blog will explain, the focus of my e-Discovery Team Training program is on education, not certification. Some programs also offer in-person CLEs that are designed to help students to prepare for certification exams. Some have been doing this for years, some are newcomers. I wish all of these other programs well. There is a huge need for education in e-discovery, and, in so far as these programs provide quality education and training, I support them.

I have been writing and working on e-discovery education for many years and I urge readers to check out the many essays I have collected on this subject in my School Page at the top. This is a career passion for me, a near obsession. I would give away all of my e-Discovery Team Training classes, but for the fact that people would think that is what they are worth, not to mention the operational costs involved. Speaking of that, we just upgraded the training site to make it an HTTPS secured site. This means the connection to the website is encrypted to prevent eavesdropping, which is important since payment is made online via PayPal.

Still, we keep the tuition low. You can attend the first five classes for free, and all sixty-two of the classes in the course only cost $500. Over 275 students have already signed-up for the free classes. In just the first four months over a thousand classes have already been given away. I’m proud of that. I’m also proud of the students who have signed up for expert interaction. What we call the Senior Level. Their answers to homework questions and research assignments show me they are getting it, that online education is a very effective way to teach this subject.

It is a big space, a big world. There are literally tens of thousands of lawyers, paralegals, techs, judges, law students, professors, and others that need to learn more about electronic discovery. In just the first four months of operation students from dozens of countries around the globe have signed up. Some of the students who have enrolled in my e-Discovery Team Training program have already taken, or are currently enrolled, or are members of one or more of the other programs. Some students want to get all of the information they possibly can.

Hopefully, we can all supply them with good information. Hopefully, we can transmit real knowledge, and maybe even a little wisdom and humor. I’ve opined on the distinctions between information, knowledge and wisdom before in Ruminations on James Gleick’s New Book “The Information,” Chaos, Life and e-Discovery. Information is easy to supply, in fact our essential problem now as a culture is too much information. How do we find the golden nuggets? The true and timely information? The real knowledge and wisdom we all need?

There is no magic pill, a wisdom CD can’t be inserted into you brain. This perennial quest for understanding has always required hard work, which is why I think my e-Discovery Team training is effective. It requires a minimum of fifty hours of work to complete. One student just reported that he logged 450 hours to pursue all possible recommended readings and research assignments. The extent of his learning from all of this work is impressive.

Academic v. Non-Academic Education

As regular readers here will know, the e-Discovery Team Training program is an outgrowth and extension of the three-credit course on Electronic Discovery Law that I teach at the University of Florida. It has a decidedly legal slant. The main difference between my law school program, and my e-Discovery Team Training program, is that the law school program has to be completed within a very short period of time. For that reason, I made the homework load of the law school course much lighter that the non-law school course available to everyone at e-DiscoveryTeamTraining.com. The law school version has fewer research tasks and fewer outside reading and research assignments than my non-academic course. Yes. You read that right. My non-academic course is harder than my academic course. But that is only because my law students, most of whom are extremely smart, have to complete their course in just a few weeks, whereas my other students have up to three years.

In my academic course students are tested at the end of the semester and graded, A-F. If they pass, they receive three hours of academic credit that goes towards earning a Juris Doctorate degree from the College of Law of the University of Florida. A diploma from the law school then entitles them to sit for a Bar Exam.

In my non-academic online course, e-Discovery Team Training, students take essentially the same tests as law students, if they elect to be tested, and I grade their exams on a pass-fail basis. The e-Discovery Team Training program is not affiliated with any university. For that reason, students are not awarded academic credit for e-Discovery Team Training, but, then again, they pay far, far less. Moreover, as I will detail, we do offer some certification, albeit a different kind than offered by other programs.

How e-Discovery Team Training Differs from Other Non-Academic Education Programs

As I said before, the focus of e-Discovery Team Training is on education, not certification. The training program is extensive and in-depth. It takes anywhere from 50 to over 400 hours of work to complete, depending on how much of the supplemental assigned materials a student completes. (This time metric does not include the supplemental educational materials that participating vendors may offer.) When students work hard and complete this program, many want to have a certificate that proves and confirms their successful completion. For that reason, upon a student’s request, we will test and certify that the student has : (1) actually attended all 62 of the online virtual classes; and, (2) understands the materials in these classes, such that, if they were taking this course as a student in law school, they would receive a passing grade for the course. It is a certification of successful completion of the training program, comparable to a diploma. It is not a certification of general competency in the field of law, like, for instance, a Bar examination.

The certification of matriculation and course-work competence provided by the e-Discovery Team Training program serves the same function as a diploma. Many employers are interested in this type of verification of successful completion, especially if they are paying for their associates, paralegals or litigation support professionals to attend. Unlike bricks and mortar CLEs, where you get credit just for showing up, here you have to pay attention and you have to understand. The certification proves the work was done and the tests were taken and passed. The tuition was well spent. This kind of verification is especially important in an online environment and adds value to the e-Discovery Team Training diploma.

Students enrolled in the Graduate level will be tested and, if they pass, their mastery of the course materials will be confirmed publicly and a diploma will be awarded. To attain this distinction, they must not only prove completion of all sixty-two modules (use is automatically monitored by ISP addresses), but must also demonstrate understanding and proficiency of the material presented by their responses to module tests and exercises. (We do not test on the supplemental Vendor Education materials.) A Masters level student may be asked to restudy certain modules based upon their responses to the questions and exercises. Furthermore, in order to earn a confirmation of successful completion of the program, Masters students must also pass an oral and written examination at the end of the program.

The testing will be rigorous. If we certify your successful completion, it will have real meaning. But our pass-fail testing will take into account the different styles of learning that students have. Although we appreciate good writing in essay questions, not everyone can do that. Maybe you are better at expressing your understanding over the phone in an oral exam? We will try hard to be fair, but all decisions are final and binding and within our sole discretion and authority. Steps will also be taken to prevent fraud and cheating, including identity verification, and secret, changing testing protocols.

Students may study at their own pace and complete the program according to their own schedule, although testing will only be offered twice a year. Not all students will pass on the first try. That’s ok. Any difficulties will be kept confidential. Students who fail the initial testing will be permitted to retake the program and retest at the next exam period. There is no additional charge for the first retake.

We will confirm successful completion of the course with both digital and paper documentation. After graduation we will also verify a student’s successful completion of the program with all employers or potential employers. CLE credit may also be awarded in some states.

Conclusion

I want to conclude by asking your opinion about certification. What do you think? Do you think private groups should certify competence in electronic discovery? Express your opinion privately in this poll.

I could care less about a certification. I use the exam as my final exam after studying the material and that motivates me.

I don’t like this cert program because the exam is only given every 6 months. Not being able to complete the material for months on end will distract my people from doing my work because they will be focused on preparing for some exam.

This is counter productive since I am trying to help them to be more productive while at the same time making them obsess about an exam.

The exam and test scores are not important to me just the fact that they have the basis for helping my company is important.

[…] Law firms should support these new specialists. Real experts who can do the e-disco dance and train others are the key. The role of certification in this process is a related, but different question, one that I asked for your input on in my last blog, e-Discovery Education and Certification. […]

About the Blogger

Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he is in charge of Electronic Discovery. All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.

Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of Electronic Discovery Best Practices, and e-Discovery Team Training, an online education program that arose out of his five years as an adjunct professor teaching e-Discovery and Evidence at the UF School of Law. Ralph is also publisher and principle author of this blog and many other instructional websites.

Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using artificial intelligence, and also in general AI Ethics. issues. Ralph was the only private lawyer to participate in the 2015 and 2016 TREC Recall Track of the National Institute of Standards and Technology and prior to that competed successfully in the EDI Oracle research.

Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management. Ralph also received the "Most Trusted Legal Advisor" industry award for 2016-17 by the Masters Conference. His full biography may be found at RalphLosey.com.

Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.

Sedona Principles 3rd Ed

1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.

4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.

12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.

13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.

14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.